Catholic bishops pledge defiance on HHS mandate

posted at 1:26 pm on November 14, 2012 by Ed Morrissey

If the Obama administration hoped that the election results and the narrow split in Barack Obama’s favor among Catholic voters would force the US Conference of Catholic Bishops into retreat on the HHS contraception mandate, the USCCB’s unity yesterday had to be a bit disappointing. The current president of the USCCB announced that the bishops would keep fighting the mandate, and while they were open to dialogue, the only option they will refuse to consider is “capitulation”:

A top American bishop said Tuesday the Roman Catholic church will not comply with the Obama administration requirement that most employers provide health insurance covering birth control.

New York Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said church leaders are open to working toward a resolution with federal officials, but will meanwhile press ahead with challenges to the mandate in legislatures and in court.

“The only thing we’re certainly not prepared to do is give in. We’re not violating our consciences,” Dolan told reporters at a national bishops’ meeting. “I would say no door is closed except for the door to capitulation.”

Dolan delivered the final blessings at both major-party conventions this year, and invited both Obama and Mitt Romney to the Al Smith Dinner event last month. He has worked hard to keep doors open, but without any success in getting the Obama administration to reconsider its religious exemption definition. When asked whether the USCCB would advise Catholic institutions to conduct civil disobedience by violating the mandate and refusing to pay penalties, Dolan would only say that “It’s still not doomsday yet.”

Archbishop William Lori of Baltimore told his colleagues, Catholic News Agency reported yesterday, that the bishops had to be in the fight for the long haul — but that the Catholic Church needed to do more “foundational” work to educate its parishioners on the need to protect religious liberty:

The strong protection of Americans’ religious freedom requires a long-term commitment to formation and education, particularly of young people, the U.S. bishops’ leader on religious liberty issues said.

“We are prayerfully resolute in pursuing the project of defending and fostering religious liberty, in the short and mid-term and in the long-term,” said Archbishop William E. Lori of Baltimore, who chairs the ad hoc committee on religious liberty.

The goal in the short term remains the end of the Obama administration’s attempt to impose its own definition of religious practice:

Looking at the immediate future, Archbishop Lori observed that the “political landscape is the same, but so also is our resolve to eliminate the HHS mandate and most especially the four-part definition that it contains of what constitutes religious activity.”

They will probably have more success in the courts and in Congress than they will with the White House. So far, two federal judges have imposed preliminary injunctions against the HHS mandate in cases involving business owners whose religious beliefs bar them from providing birth control. Neither case involved religious organizations, which would have a stronger case on religious liberty grounds. In the latest such decision, the Thomas More Law Center won the injunction on the grounds that the HHS mandate constituted “irreparable injury” to the plaintiff:

The Thomas More Law Center, a pro-life legal group, won the victory for the business and Erin Mersino, TMLC’s lead counsel on the case who presented the oral argument, told LifeNews: “The federal court has found that our clients have a likelihood of success and would be irreparably harmed by the unconstitutional overreaching of the HHS mandate. This is not only a victory for our clients, but for religious freedom.”

Mersino said the mandate forces employers, regardless of their religious convictions, to provide insurance coverage for abortion-inducing drugs, sterilization, and contraception under threat of heavy penalties.

In ruling for the Weingartz Plaintiffs, Judge Cleland emphasized that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

The judge added: “The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in Plaintiffs’ favor. A preliminary injunction is warranted.”

In a new interview with the National Catholic Register, Richard Doerflinger, the associate director of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities and the chief pro-life lobbyist, talked about the next push for the mandate exemption. He believes the upcoming Labor/HHS appropriations bill for Fiscal Year 2013 afford pro-life advocates another opportunity to push the Fortenberry-Blunt conscience protections.

“So far, we have pursued remedies to the contraception mandate in all three branches of government, and all those avenues remain open,” he said.

Approving the conscience protections will be easy on the House side with pro-life Republicans controlling the chamber, but Doerflinger says he thinks the Senate is still a possibility since there are almost 50 votes for it.

“The election left things largely as they were: We count the same number of votes in the new Senate as in the old — not in terms of party affiliation, but in terms of pro-life position,” he said. “The only time that a conscience measure for the mandate was considered in the Senate it got 48 votes, with very little time to explain the issues. Getting to 50 or 51 votes in the Senate could happen, especially if you can attach legislation to a must-pass vehicle, where you have leverage to trade back and forth, to get policy riders approved. We are not giving up on that and will continue to pursue this agenda.”

If the bishops get thwarted on all of these paths for redress, the final option would to be shut down the schools, health providers, and charities run by the Catholic Church, an option that Cardinal Dolan appeared to leave open. For a look at how that would impact just the health-care delivery infrastructure in the US, be sure to read my column at The Fiscal Times on that topic from March of this year. I don’t think the USCCB is bluffing, either — and this is a $100 billion bet that the White House has kept pushing all year long.